Spying on Your Spouse

1. I believe that my spouse is cheating on me. Can I legally spy on her?

Many people these days use all kinds of spying methods on their cheating spouses. But most of them are not aware that using spying equipment or surveillance services could be illegal. They could find themselves in a thorny legal mess unless they know the facts and the strict federal and New Jersey laws.

Hidden cameras, listening devices, or GPS systems will allow you to monitor the activities of your spouse. Specific software installed on your spouse’s computer could monitor your spouse’s online presence and activities. Hiring a detective spy on your cheating spouse is another popular method. It is not illegal to purchase these products or services. However, most people don’t realize that there are strict state and federal laws regarding the use of surveillance equipment, such as listening devices which allow you to eavesdrop on another person, hidden cameras which let you view the activities of others without their knowledge, GPS tracking devices which allow you to monitor the location of someone’s vehicle, and other gadgets or software installed on someone else’s computer to monitor their Internet activities.

In summary, there are very strict laws which apply to electronic communications such as emails, computer communications (e.g., chat rooms, instant messages) and telephone calls. Spouses who attempt to spy on a cheating spouse using surveillance equipment should be aware that they could find themselves on the wrong side of the law.

If you plan to purchase surveillance equipment from a store or online, you will notice that most stores have disclaimers that mention that these products must not be used for illegal activities. Additionally, most surveillance product manufacturers clearly state that their products should not be used in an illegal manner. These disclaimers point out that the purchaser is the only one responsible for the use of the products. So be very careful!

2. What are some other illegal spying activities?

Pre-texting is also illegal: the practice of calling a cell phone company and pretending to be someone else in order to get access to their phone records.

If you hire a private investigator to spy on your mate and if he uses illegal methods to do so, you could also be liable.

Also be wary of logging onto websites with your spouse’s username and password without his or her knowledge (e.g., online banking accounts).

Is there a way to spy on your cheating spouse without running afoul of the law? Of course there is! There is not necessarily a need to use surveillance equipment or hire a private investigator. Use your own eyes and ears. Use your mind and knowledge of your spouse. With your own spouse, you should be able to tell if he or she behaves strangely or changes his or her habits for no reason.

3. Can a person record or tape a conversation of his or her spouse?

Pursuant to federal and state wiretapping statutes, a person is legally permitted to record and tape a conversation only if the person who is doing the recording or taping is a party to the conversation. A person can’t tape a spouse while he or she is talking to other people, and more specifically a paramour.

In 1991, a New Jersey trial court in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991), addressed the issue of whether a husband violated the wiretapping statute by taping his wife’s telephone communications in the marital home, and whether such actions could result in damages. The court ruled that it was illegal for a person to record the phone conversations of his spouse with another person. The court reasoned that the invasion of privacy was severe, and found that the secretive taping of a spouse’s telephone calls under those circumstances was an egregious invasion that warranted both compensation and punitive damages.

Therefore, although both New Jersey and federal wiretapping laws permit the taping of a conversation to which an individual is a party, any other form of taping or recording of another person’s conversation can be a violation of criminal and civil wiretap laws.
 

4. I believe that my husband is cheating on me. Can I wiretap his phone?

In New Jersey, the use of an unauthorized taped conversation is inadmissible in court because the illegal taping violates state and federal law. The spouse could be civilly or criminally liable as a result of attempting to introduce such information. If a client’s “absolute proof” of adultery involves the unauthorized recording of his spouse’s telephone conversation with a new lover, I immediately advise the client that he has violated both New Jersey and federal wiretapping laws, which may expose him to criminal penalties and severe civil penalties. If a client has obtained illegally intercepted communications, he should destroy them and not attempt to use them to obtain an advantage in an upcoming divorce case. Intercepted phone conversations may give a spouse enough proof and motivation to start divorce proceedings; however, the means used to obtain these taped phone conversations can prove to be disastrous.

5. Can I intercept my spouse’s cell phone calls?

The State of New Jersey has adopted a more restrictive wiretap statute than the federal wiretapping law. New Jersey’s wiretap statute defines a wire communication to include “any electronic storage of such communication, and the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.” This is the opposite of the federal statute, which exempts cordless phones. Thus, under New Jersey law, the interception of cell phone communications is prohibited.

6. Can I intercept my spouse’s pager communications?

Someone who suspects adultery often seizes the spouse’s pager and scans the memory for telephone numbers. Scanning a spouse’s pager may provide proof of adultery. An interesting issue that then arises is whether the retrieval of stored telephone numbers on a pager constitutes a violation of the wiretap act. On a federal level, the answer would appear to be no. The New Jersey Wiretap Act is more stringent and defines “wire communication” as including “electronic storage of such communication.”

7. Can I intercept my spouse’s emails?

Many spouses are caught in adulterous situations by having their e-mails reviewed. One can find literally hundreds of spyware programs and “gizmos” offered for sale that enable a person to retrieve deleted emails. We are now living in an information era. In the past, the most common way a spouse was discovered was through the efforts of an investigator. In the modern world, the retrieval of a spouse’s stored emails is the most frequent way an adulterous affair is discovered.

There is no easy answer to the question of whether a spouse can retrieve email messages and records of chat room activity without violating wiretap statutes. If the computer is located in the marital home, then in most cases the interception of emails will not constitute a violation of New Jersey and federal wiretapping laws. However, if someone tries to intercept emails on a spouse’s computer at his workplace, then a violation of several New Jersey and federal laws results.

An illustrative case is White v. White, 344 N.J. Super. 211 (Ch. Div. 2001). The White case is the first reported New Jersey decision that addresses the admissibility of a husband’s “private” email communications between himself and his girlfriend which were accessed by the wife’s computer expert. The court denied the husband’s motion to suppress the emails on the grounds that the wife’s action violated the New Jersey Wiretap Act. Finding that the emails had been stored, i.e., saved, “post-transmission” in the husband’s personal electronic file cabinet, the court held that the Wiretap Act only applies to communications that are in transmission, and not to those that have been previously sent and saved.

The White court further held that the wife’s accessing the “private” email communications of the husband did not constitute an invasion of privacy, since the husband had no objective reasonable expectation thereof. The evidence showed that the emails were accessed from a computer maintained in a sunroom that the husband had been occupying during the parties’ in-house separation; that the wife and the parties’ three children were in and out of the room for various reasons, including the use of the computer; and that, while easy to do, the husband failed to employ any privacy protection mechanisms to prevent unwarranted intrusions into his personal files. The court also found that the wife’s arguable snooping into her husband’s personal information to learn about his possible affair was not uncommon under the circumstances.

8. Are there other potential legal ramifications of accessing my spouse’s stored computer files?

In many cases, a spouse who suspects adultery will hack into the cheating spouse’s computer files and emails. As previously discussed, if the computer is not located in the marital residence, then the intrusion will constitute a violation of both New Jersey and federal wiretapping laws. In addition, there may be some tort liability. Hacking into your spouse’s computer may constitute the common law tort of invasion of privacy or invasion of seclusion, and may also be considered as a theft. However, in my experience, it is very unlikely that a prosecutor would file any type of criminal charge(s) if a spouse hacked into a home computer. The prosecutor may be more interested in pursuing theft charges if the computer hacking occurs on the cheating spouse’s computer that is located at his place of employment, or from a computer system of a corporation or financial institution.

9. What is the status of the law with regard to the interception of a spouse’s emails and computer records?

With the current prevalence of Internet sex and resulting divorce litigation, wiretapping violations are at the forefront in many divorce cases. A spouse who tries to prove adultery by retrieving messages from hard drives, Internet services, recycle bins, or other areas of storage could clearly be in violation of both New Jersey and federal wiretapping laws. The information that was obtained to verify the adulterous relations may be invaluable on a personal level. However, any evidence that is obtained by illegal wiretapping or by illegal hacking into a spouse’s computer should not be used as leverage in a divorce case. An experienced divorce lawyer can actually use the act of illegal wiretapping as grounds to file a civil suit against the violating spouse. The civil suit is filed as part of the divorce case and is called a Tevis claim. The cheating spouse can actually use the wiretapping violation as a bargaining chip to obtain a more favorable divorce settlement.

10. Can I use video surveillance to spy on my spouse in our marital home?

If the video surveillance occurs in the marital home then in most cases it will be permissible and will not constitute an invasion of privacy. However, if the video surveillance occurs outside the marital home, then a strong argument can be made for the marital tort of invasion of privacy. The spouse who was filmed could assert that he or she had a reasonable expectation of privacy in not being hounded by video surveillance. The key issue is where the video surveillance occurs. A suspecting spouse certainly should not use video surveillance outside of the marital home, or in her mate’s workplace.

Illustrative is the case of Colon v. Colon, where the Appellate Division recently addressed a divorce action which included a husband’s allegations that his wife violated the New Jersey Wiretap Act by recording home telephone conversations, and that she violated his privacy by placing hidden video cameras in the home office of their New Jersey marital residence and in the bedroom of their New York apartment. The trial court awarded the husband statutory damages of $1,000 for the phone wiretap, $1 in nominal damages for the invasion of privacy claim (as there was no proof of actual damages), and $125,000 in punitive damages.

The Appellate Division reversed the trial court, concluding that the huge monetary award was erroneous. Regarding the New Jersey home office, there was no finding that the husband had a reasonable expectation of privacy in the home office, as the whole family freely used the room. Regarding the New York apartment, New York law provided no common law or statutory right of privacy. Moreover, even if there were a right of action, the court held that before punitive damages can be awarded, there must be a finding of compensatory damages, for which there was no proof here.

11. Can video surveillance of a spouse constitute a violation of the Federal Wiretapping Act?

Video surveillance is not within the purview of the Federal Wiretapping Act, and courts have generally exempted video surveillance from the Act.
    

12. Is planting a global positioning device on your spouse’s car legal?

The use of GPS systems is increasingly being used to monitor cheating spouses. The falling price and shrinking size of GPS systems have spouses from all walks of life keeping track of their “better” halves. Spouses can now use a GPS device to follow a vehicle, and presumably the cheater, behind the wheel. The GPS system’s software works seamlessly with online map services such as Google Maps. Thereafter, the suspecting spouse can sit back and wait for that “gotcha” moment.

The legality of secretly planting a GPS system is a very fact-sensitive analysis. Like checking a spouse’s email, the legality of secretly planting a GPS tracker depends on who owns the vehicle. In a purely technical sense, if you own the vehicle or have joint ownership of it, then it is perfectly legal to use a GPS system to monitor it. Spouses can legally access their spouse’s email in scenarios where there is a jointly-owned computer or a computer that is used by the entire family. The key issue in the planting of a GPS system is whether the spouse who was tracked had a reasonable expectation of privacy. The question apparently has yet to be raised in a divorce case in New Jersey. The law is normally five years behind technological developments.